PORTLAND, OR – The American Civil Liberties Union of Oregon filed a friend-of-the-court brief today urging a federal appeals court to affirm a lower court’s decision to strike down two search and surveillance provisions of the Patriot Act as unconstitutional. The case was brought by Oregon lawyer Brandon Mayfield against the federal government after the FBI mistakenly linked him to the Madrid train bombings in 2004. The lower court found that secret searches of Mayfield’s house and office violated the Fourth Amendment’s guarantee against unreasonable search and seizure.

“The court ought to reject these unlawful provisions of the Patriot Act. Brandon Mayfield’s case is a tragic reminder of how critical the Fourth Amendment’s criminal probable cause requirement is to protect people from an overreaching government,” said David Fidanque, Executive Director of the ACLU of Oregon. “By allowing the government to conduct intrusive searches and wiretaps in criminal investigations without first showing criminal probable cause, these surveillance provisions are clearly unlawful.”

The Foreign Intelligence Surveillance Act (FISA) controls the government’s surveillance for foreign intelligence purposes and has significantly fewer constitutional safeguards than apply to standard criminal investigations. Before enactment of the Patriot Act in 2001, the government could conduct surveillance under the less-protective and more secretive FISA system only where its primary purpose was to gather foreign intelligence activity, not evidence of a crime. But after the Patriot Act, the government can rely on FISA to gather evidence of ordinary crimes – without criminal probable cause – simply by claiming it is also gathering foreign intelligence.

“The FBI is free to investigate criminal activity – including terrorism – but it must also comply with the Constitution,” said Melissa Goodman, a staff attorney with the ACLU National Security Project. “Letting the government evade the standard rules for criminal investigations is dangerous. The government should not be allowed to conduct criminal surveillance under a less restrictive regime simply because it claims there is some foreign intelligence gathering purpose – especially when one doesn’t exist.”

In addition to the ACLU of Oregon, organizations joining today’s brief include the Center for Constitutional Rights, Electronic Frontier Foundation and Center for Democracy and Technology. The brief was authored by Ilann Maazel and Elora Mukherjee of Emery Celli Brinckerhoff & Abady LLP in New York and Marc D. Blackman and Kendra M. Matthews of Ransom Blackman LLP in Oregon.

The friend-of-the-court brief is available online at:
www.aclu.org/safefree/spying/34495prs20080317.html